Pass along your firearms legally in your will or trust

When setting up your estate plan, it’s common to include your wishes on what happens to your personal property. From a piece of furniture to important books, family heirlooms to tools, in general you can set down your wishes in your estate plan. Firearms compliance in Oregon, guns and estate planning are more complicated.

State and federal laws have specific requirements about firearms. When developing your will or trust, an Oregon estate attorney can evaluate how best to set up your plan to meet any of these special legal requirements. But what are some things that might be required?

After death, firearm transfers after death have to pass through probate court

While firearm designations can be part of wills and revocable living trusts, they still have to comply with broader legal processes for guns and estate planning. In Oregon, after a person dies, transferring firearms ownership and possession has to pass through probate court. 

Even when the will specifies transferring firearms to beneficiaries, the personal representative first will have to transfer that ownership, under the rules of the probate court. Relevant parties will have to observe any waiting periods or background checks the law requires.

If a firearms transfer isn’t completed under the law, that can trigger potential legal consequences, such as confiscation of the firearm, or possibly even felony charges.

Family member exceptions exist, but there are limitations

Oregon law does account for specified types of relatives to receive firearms transfers without additional processes. However, these categories aren’t unlimited. For firearms compliance in Oregon estates, Oregon law carves out transfer of a firearm to a transferor’s:

• Spouse or domestic partner
• Parent or stepparent
• Child or stepchild;
• Sibling
• Grandparent
• Grandchild
• Aunt or uncle
• First cousin
• Niece or nephew
• Spouse or domestic partner, or the spouse or domestic partner of a person who is one of the above

If the transferee isn’t a person above, the transfer for guns and estate planning will have to comply with the processes under state and federal law, such as the transfer having to go through a Federal Firearms License (FFL) licensed firearms dealer. That typically includes a background check.

Oregon has more extensive requirements than federal law

While federal law may require a background check for retail firearms sales, there are typically exceptions around private firearms sales or transactions that take place at a gun show.

• In Oregon, however, the rules can be more extensive, such as:
• Mandatory background checks
• Federal requirements extended to gun shows and other private-party sales
• Sales at a gun show must also process a background check through a licensed firearms dealer
• Without clearance of a successful background check and/or compliance with other legal steps, the transfer may be halted and not completed

NFA-regulated firearms face additional federal restrictions

Regulations under the National Firearms Act, or NFA, may encompass certain types of firearms and their ownership transfers, such as:

• A shotgun having a barrel or barrels of less than 18 inches in length;
• A weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
• A rifle having a barrel or barrels of less than 16 inches in length;
• A weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
• Any other weapon, as defined in subsection (e);
• A machine gun;
• Any silencer (as defined in section 921 of title 18, United States Code); and
• A destructive device

Failure to transfer these devices outside of legal compliance is considered a felony, and legal possession and ownership transfer requires correct documentation, including a background check.

Gun trusts offer specialized solutions for firearm owners

While firearms have additional requirements, the law also opens up possibilities to account for the additional nuances and compliance issues faced with firearms transfers as part of an Oregon estate plan.

For example, a gun trust is an estate instrument designed to hold and transfer firearms, including those devices regulated under the NFA.

Gun trusts are typically revocable. They’ll require designation of the grantor (person establishing the trust), the property held in the trust, any co-trustees, and the trust’s rules for the management and transfer of the property, including not only after death of the grantor, but in the event of incapacitation.

Rules such as background checks still apply. The gun trust will also have additional terms to comply with state and federal law, in part to map out legal ownership and possession, so that members of the trust don’t inadvertently break state or federal law.

Gun trusts can avoid probate and retain your privacy

While firearm transfers from an estate typically pass through probate, a gun trust can be a way to avoid probate, not to mention maintain privacy for you and the people in the trust. This can be a way to balance the need for legal compliance with the desire to minimize public knowledge of the ownership, transfer, and devices in question.

Under normal probate, wills and their terms become part of public record. That will include anything related to firearms. However, trusts, including gun trusts, rarely have to pass through probate. Their terms remain private.

Another benefit of a gun trust can be smoother, faster ownership transfers within Oregon.

Gun trusts allow legal sharing of firearms during your lifetime

The terms of a gun trust can account for legal use of the firearms as well. A key benefit? Cutting down the likelihood of “accidental felonies” that might otherwise come into play by the use or possession of the firearms in question.

Fortunately, a gun trust can specify people who may have legal possession of the firearm.

Incapacitation planning protects your gun rights

Proper estate instruments such as gun trusts don’t just account for how to transfer the firearms after death. They can also account for what happens to the firearms in the event of the owner’s incapacitation, balancing safe stewardship with the owner’s Second Amendment rights.

By accounting for gun ownership, a person could still retain assistance for some financial, personal, health, or other matters, but not lose their right to keep and bear arms. The trust then provides guidance and terms on gun possession and ownership, instead of a guardian or conservator taking over that power and right.

Gun ownership and legal firearms require following certain rules, but those transfers can be part of your estate

Firearms compliance in Oregon estates is more complicated than other types of property. While state and federal laws must be followed for guns and estate planning, there are legal instruments and mechanisms that can secure the owner’s wishes, respect their gun rights, and ensure proper transfer when the time is right. Gun trusts build on this via terms specific to maintaining ownership and legal possession, both during the owner’s life and after their passing.

Following the law for firearms compliance in Oregon estates can be complicated, and the consequences can be severe. Fortunately, an experienced Oregon estate attorney can be by your side to set up your gun trust or other firearms estate documents for now and the future.

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